Summary: Mrs Y complains that fault by the Council meant her daughter, D, missed out on important special educational provision and therapy. The Council upheld the complaint and provided a substantial financial remedy at the top end of the scale we recommend. In our view, Mrs Y has received an appropriate remedy for the injustice caused by fault, and we do not recommend anything further.

The complaint

1. Mrs Y complains the Council failed to secure the provision set out in her daughter’s EHC [Education Health and Care] Plan, failed to provide her with a personal budget to secure Occupational Therapy (OT), and failed to review the EHC Plan within the statutory timescale.
2. Mrs Y further complains the financial settlement the Council has offered does not reflect the full value of the provision her daughter has lost, or the distress, uncertainty and financial loss the family has been caused.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. I have not investigated parts of Mrs Y’s complaint which date back to 2020, such as missing OT between September 2020 and January 2022 and a failure to deliver a personal budget between November 2021 and April 2022. This is because Mrs Y approached the Ombudsman in August 2024 which is almost four years after some of the older matters complained about. I am not aware of any good reason to exercise the Ombudsman’s discretion on time.

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How I considered this complaint

7. During my investigation I discussed the complaint with Mrs Y by telephone and considered the information she provided, including the complaint correspondence.
8. I consulted the Ombudsman’s Remedies Guidance before writing this decision.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making this final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

The Council’s duties

11. Councils have a duty to make sure the child or young person receives the special educational provision set out in Section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

13. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Summary of key background events

17. D has disabilities and special educational needs. Her EHC plan sets out how those needs will bet met in school. During the matters complained about, D attended a specialist school for young people with severe and complex learning disabilities.
18. Mrs Y complained in March 2024 that the Council failed to provide the agreed Speech and Language Therapy (SLT) for D during the Autumn term of 2023. According to D’s plan, she needed the following SLT input:
• Ten 1:1 weekly sessions per term to support D to work towards her communication outcomes. Each session includes 45 minutes of therapy for D.
• A key member of D’s staff to repeat the sessions for 45 minutes each day to further strengthen D’s skills and help towards her targets.
• Six 1:1 sessions to be delivered each fortnight in a distraction free setting to build upon D’s objectives. Each session includes 30 minutes of therapy for D.
• Dedicated 1:1 learning sessions for 15 minutes twice each day to repeat the key concepts delivered in class.
19. Mrs Y also complained the Council failed to ensure the delivery of D’s agreed Occupational Therapy (OT). She said:
• The first payment for D’s personal budget relating to her OT should have been made by the Council in September 2023, but Mrs Y did not receive it.
• As a result of the delay, Mrs Y says D had ‘unspent funds’ for the 2022/23 school year. She asked the Council to allocate the unspent funds for D to receive ‘catch up’ provision in the 2023/24 school year.
20. Mrs Y also complained about the EHC reviews which did not take place within statutory timescales. She said D’s Year 9 review took place in March 2023, but the Council did not issue the amended EHC plan until 21 February 2024.
21. The Council responded to Mrs Y’s complaint. It upheld the complaint about the missed provision and the delayed annual review. The Council agreed to make a payment in recognition of the impact on D. The payment was made up as follows:
• £9,000 to be paid for D’s educational benefit in recognition of the four school terms of missed OT between September 2020 and June 2022.
• £1,540 to be paid in recognition of the SLT provision which should have been delivered in the Autum term of 2023. The missed sessions amounted to 153.75 hours at a cost of £3,080. The Council halved this amount because it says a SLT report dated March 2024 did not refer to delays caused by gaps in provision. The Council also considered that D attended a “highly specialist” placement with staff appropriately trained to deliver specialist provision and communicate appropriately with D.
• £250 to be paid to Mrs Y in recognition of her avoidable distress.
• In addition to the above payments, the Council agreed to arrange ‘catch up’ SLT provision for D.
22. Mrs Y approached the Ombudsman because she felt the Council’s proposal did not go far enough in remedying the significant injustice which she and D experienced from the fault.

Analysis

23. The Ombudsman’s Remedies Guidance sets out how the Ombudsman should recommend remedies for injustice caused by fault. In cases where a young person has missed educational provision or therapies as set out in Section F of their EHC plan, we may recommend a symbolic financial payment in recognition of the impact caused by that loss. We do not usually recommend a payment equal to what the provision would have cost the Council.
24. Our Remedies Guidance says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT. The level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child or young person”.

25. I have not recommended any further financial remedy because the amount already provided by the Council is at the top end of our suggested scale for total missed provision. Although the provision is a significant part of D’s EHC plan, I am mindful the failures relate to SLT and OT rather than overall educational provision which remained available during the period of fault. Furthermore, the Council has also considered missed provision from four years ago which is beyond the scope of my investigation.
26. However, regarding the catch-up SLT provision proposed by the Council, Mrs Y says the Council asked her to source a suitable provider, but she has tried for over a year without success. While I have not added this as a formal recommendation due to the overall remedy being proportionate, I suggest the Council contacts Mrs Y to help her arrange the catch-up provision as agreed.

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Final decision

27. I have completed my investigation with a finding of fault causing injustice which has already been remedied by the Council. I have not recommended any further remedy for the reasons explained in this statement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman